concurring in the judgment:
I concur in the judgment and all but Part I.B.1 of the court’s opinion. Because I conclude that Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) was not overruled by the 1991 amendment to 42 U.S.C. § 1981, plaintiffs have failed to state a cause of action by failing to allege that their civil rights were violated as a result of an official policy or custom.
The question whether the 1991 amendment creates an implied cause of action under § 1981 need not be decided. If the amendment does not create an implied cause of action, then Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) is still valid, and plaintiffs failed to state a cause of action because none exists. If, on the other hand, § 1981(e) does create an implied cause of action, plaintiffs fail to state a claim thereunder because they fail to allege a policy or custom.
For these reasons, I would affirm the district court without reaching the issue whether § 1981(c) creates an implied cause of action.